Sri Janardan Mohanty Vs. Union of India (Uoi) and 3 ors. - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. order1. heard mr. p.c.acharya for the petitioner and mr. p. k. parhi, standing counsel, central government for the opp. parties.the writ petitioner, a permanent resident of orissa was appointed as a constable in central industrial security force (hereinafter referred to as 'c.i.s.f.'). he was promoted to the rank of assistant sub-inspector clerk. while he was posted in the c.i.s.f. unit, h.e.c., ranchi a disciplinary proceeding was initiated against him. by final order dated august 29, 1998 the deputy inspector general of the unit at ranchi being the disciplinary authority imposed punishment of removal from service with immediate effect. the petitioner filed an appeal before the appellate authority, being the inspector general, eastern sector. as the petitioner was removed from service he had to come back to his permanent place of residence in the district of angul within the state of orissa. by order dated april 9, 1999 the appellate authority dismissed the appeal and the said order was communicated to the writ petitioner at his permanent residence in the state of orissa. petitioner has filed this writ application before this court challenging the said order of removal passed by the disciplinary authority and the appellate order passed by the appellate authority.2. at the stage of admission mr. p.k.parhi. learned advocate for the opp. parties raised a preliminary objection regarding the territorial jurisdiction of this court to entertain this writ application. according to him, petitioner was posted at ranchi in the state of bihar when the order of removal was passed. the office of the disciplinary authority was at ranchi and that of the appellate authority at patna and as such the petitioner cannot invoke the jurisdiction of his court merely because he is a permanent resident of the state of orissa or the appellate order was received by him within the state of orissa.3. in order to determine the territorial jurisdiction it is to be seen whether any part of the cause of action has arisen within the state of orissa. cause of action has been defined in mulla's code of civil procedureas :'the 'cause of action' means every fact, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court.'the service of the appellate order on the petitioner at his permanent residence in the state of orissa will give rise to a cause of action within the territory of this state if service of the said order was an integral part of the cause of action. the communication of an order affecting the service of an individual is necessary and the order takes effect against the individual employee after it is communicated. in the present case also the cause of action arose only when the appellate order was communicated to and or served on the petitioner. admittedly the order was communicated at the petitioner's permanent residence within the state of orissa. in our view in the facts and circumstances of the present case part of the cause of action has arisen within the state of orissa.4. learned advocate for the opp. parties has referred to the decisions of the supreme court in oil and natural gas commission v. utpal kumar basu and others reported in jt 1994 (5) sc and in state of rajasthan and others v. m/s. swaika properties and another. air 1985 sc 1289 to submit that mere service of the appellate order on the petitioner in the state of orissa cannot form part of the cause of action.5. the aforesaid decisions were rendered in the facts and circumstances of those cases. in those decisions the petitioners were companies, which had capacity and ability to avail of their judicial remedies in rajasthan and delhi. in fact both the companies appeared and actively participated in the proceeding, administrative and quasi-judicial, rajasthan and delhi. those companies deliberately selected their forum although they could approach rajasthan and delhi high courts where decision was taken. even in those two decisions supreme court did not lay down any general proposition that service of notice can never form part of the cause of action. we are of the opinion that strict standard applied by the supreme court in case of companies with sufficient resources should not be adopted in case of individual dismissed employee seeking to challenge an order relating to his removal in the state where he has taken shelter in usual course after his removal from service.6. right to invoke article 226 of the constitution of india to enforce fundamental rights and other legal rights against the state or authority or its agency is a constitutional right. such right should not be made illusory or unenforceable upon narrow construction of the concept of cause of action. in the present case, the petitioner was a member of the cisf and all india organisation. cisf has admittedly its network of offices and establishments in different parts of india including the state of orissa. the petitioner is an employee removed from service and in usual course, he had come back to the place of his permanent residence in orissa to take shelter after he had been removed from service. it is not possible for him a jobless employee to come to the state where he was last posted to avail of his right under article 226 of the constitution of india. cisf with its net-work of offices and establishments is not likely to suffer any irreparable prejudice in meeting legal challenge of the petitioner in this court.7. considering all these aspects including the interest of justice, we are of the view that a part of cause of action has arisen within the territorial jurisdiction of this court enabling it to entertain this writ application.8. let the writ application be heard on merit. the opp. parties are directed to file counter affidavit within four weeks from to-day. place this ojc for final disposal after six weeks.

Judgment:
ORDER

1. Heard Mr. P.C.Acharya for the petitioner and Mr. P. K. Parhi, Standing Counsel, Central Government for the opp. parties.The writ petitioner, a permanent resident of Orissa was appointed as a constable in Central Industrial Security Force (hereinafter referred to as 'C.I.S.F.'). He was promoted to the rank of Assistant Sub-Inspector Clerk. While he was posted in the C.I.S.F. Unit, H.E.C., Ranchi a disciplinary proceeding was initiated against him. By final order dated August 29, 1998 the Deputy Inspector General of the Unit at Ranchi being the disciplinary authority imposed punishment of removal from service with immediate effect. The petitioner filed an appeal before the appellate authority, being the Inspector General, Eastern Sector. As the petitioner was removed from service he had to come back to his permanent place of residence in the district of Angul within the State of Orissa. By order dated April 9, 1999 the appellate authority dismissed the appeal and the said order was communicated to the writ petitioner at his permanent residence in the State of Orissa. Petitioner has filed this writ application before this Court challenging the said order of removal passed by the disciplinary authority and the appellate order passed by the appellate authority.

2. At the stage of admission Mr. P.K.Parhi. learned Advocate for the opp. parties raised a preliminary objection regarding the territorial jurisdiction of this Court to entertain this writ application. According to him, petitioner was posted at Ranchi in the State of Bihar when the order of removal was passed. The office of the disciplinary authority was at Ranchi and that of the appellate authority at Patna and as such the petitioner cannot invoke the jurisdiction of his Court merely because he is a permanent resident of the State of Orissa or the appellate order was received by him within the State of Orissa.

3. In order to determine the territorial jurisdiction it is to be seen whether any part of the cause of action has arisen within the State of Orissa. Cause of action has been defined in Mulla's Code of Civil Procedureas :

'The 'cause of action' means every fact, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court.'

The service of the appellate order on the petitioner at his permanent residence in the State of Orissa will give rise to a cause of action within the territory of this State if service of the said order was an integral part of the cause of action. The communication of an order affecting the service of an individual is necessary and the order takes effect against the individual employee after it is communicated. In the present case also the cause of action arose only when the appellate order was communicated to and or served on the petitioner. Admittedly the order was communicated at the petitioner's permanent residence within the State of Orissa. In our view in the facts and circumstances of the present case part of the cause of action has arisen within the State of Orissa.

4. Learned Advocate for the opp. parties has referred to the decisions of the Supreme Court in Oil and Natural Gas Commission v. Utpal Kumar Basu and others reported in JT 1994 (5) SC and in State of Rajasthan and others v. M/s. Swaika Properties and another. AIR 1985 SC 1289 to submit that mere service of the appellate order on the petitioner in the State of Orissa cannot form part of the cause of action.

5. The aforesaid decisions were rendered in the facts and circumstances of those cases. In those decisions the petitioners were companies, which had capacity and ability to avail of their judicial remedies in Rajasthan and Delhi. In fact both the Companies appeared and actively participated in the proceeding, administrative and quasi-judicial, Rajasthan and Delhi. Those Companies deliberately selected their forum although they could approach Rajasthan and Delhi High Courts where decision was taken. Even in those two decisions Supreme Court did not lay down any general proposition that service of notice can never form part of the cause of action. We are of the opinion that strict standard applied by the Supreme Court in case of Companies with sufficient resources should not be adopted in case of individual dismissed employee seeking to challenge an order relating to his removal in the State where he has taken shelter in usual course after his removal from service.

6. Right to invoke Article 226 of the Constitution of India to enforce fundamental rights and other legal rights against the State or authority or its agency is a constitutional right. Such right should not be made illusory or unenforceable upon narrow construction of the concept of cause of action. In the present case, the petitioner was a member of the CISF and All India Organisation. CISF has admittedly its network of offices and establishments in different parts of India including the State of Orissa. The petitioner is an employee removed from service and in usual course, he had come back to the place of his permanent residence in Orissa to take shelter after he had been removed from service. It is not possible for him a jobless employee to come to the State where he was last posted to avail of his right under Article 226 of the Constitution of India. CISF with its net-work of offices and establishments is not likely to suffer any irreparable prejudice in meeting legal challenge of the petitioner in this Court.

7. Considering all these aspects including the interest of justice, we are of the view that a part of cause of action has arisen within the territorial jurisdiction of this Court enabling it to entertain this writ application.

8. Let the writ application be heard on merit. The opp. parties are directed to file counter affidavit within four weeks from to-day. Place this OJC for final disposal after six weeks.